Supreme Court - Daily Orders
Assocication Of Power Producers vs Sandplast (India) Ltd. on 4 February, 2019
Bench: D.Y. Chandrachud, Hemant Gupta
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2019
(Diary No.2959/2019)
ASSOCIATION OF POWER PRODUCERS & ORS. ... APPELLANT(S)
VS.
SANDPLAST (INDIA) LTD. & ORS. ... RESPONDENT(S)
O R D E R
1. Permission to file appeal is granted.
2. The present appeal arises from an order of the National Green Tribunal1 dated 3 January 2019. The order follows upon an earlier order passed by this Court on 13 December 2018 in a civil appeal filed by the appellants against the earlier order of the Tribunal dated 20 November 2018. On 13 December 2018, the civil appeal was disposed of in terms of the following directions:
"Permission to file appeal is granted. The grievance of the appellants is that they have not been heard by the National Green Signature Not Verified Tribunal ("the NGT") before the impugned order was passed and directions for deposit of Digitally signed by SARITA PUROHIT Date: 2019.02.09 13:40:36 IST Reason: damages were issued. It is appropriate that ____________________ 1 the Tribunal 2 the grievance is addressed before the NGT and we grant liberty to the persons aggrieved to do 1 so. Hence, we are not inclined to entertain the appeal, but leave it open to the persons aggrieved to pursue an appropriate application before the NGT.
The civil appeal is, accordingly, disposed of. No costs."
3. The appellants filed Miscellaneous Applications before the Tribunal. The Tribunal while declining to entertain the application has held thus :
"5. We have also heard the learned counsel for Association of Power producers, in view of the order passed by Hon'ble Supreme Court on 13.12.2018 in Diary No.46100/2018 in the matter of Association of Power Producers v. Sandplast (India) Ltd. & Ors. The fact remains that applicants are covered by the notification issued by MoEF&CC on 25.01.2016 requiring the applicants and other thermal power plants to dispose of fly ash within the specified time.
The said notification is not under challenge. In this view of the matter, we do not find any ground not to apply the directions of this Tribunal to similar power plants represented by the Association of Power Producers.
6. We thus, do not find any merit in these Misc. Applications and the same are accordingly dismissed."
4. Dr A M Singhvi, learned senior counsel appearing on behalf of the appellants has submitted that the Tribunal has proceeded on the basis that since the Notification dated 25 January 2016 of the Ministry of Environment, 1 3 Forests and Climate Change2 has not been challenged, there was no reason to entertain the Miscellaneous Applications. The submission is that as a matter of fact, the appellants seek to rely upon the Notification dated 25 January 2016, which in turn has effected amendments to an earlier Notification dated 14 September 1999. Learned senior counsel submitted that
i) The appellants have taken necessary steps in compliance of the Notification as well as the earlier Notification;
ii) The report of the Joint Committee appointed in pursuance of the order of the Tribunal dated 20 November 2018 for quantifying damages is to be submitted by 31 March 2019; and
iii) In the circumstances, there is no justification to impose a general direction for the levy of damages without the Tribunal applying its mind to whether there has been any breach on the part of each Thermal Power Plant in complying with the obligations imposed by the Notification of the MoEF&CC or, as the case may be, MoEF.
5. At this stage, it is also necessary for this Court to take notice of the fact that on 25 January 2019, we have disposed of Civil Appeal No.650 of 2019 filed by the National Thermal Power Corporation Ltd., arising from the __________ 2 MoEF&CC 4 same order of the Tribunal dated 20 November 2018. While disposing of the appeal, this Court observed thus :
"In our view, it would be appropriate to grant the appellant an opportunity to place before the Tribunal all relevant material in its possession to indicate the steps which have been taken for compliance with the notifications issued from time to time by the Ministry of Environment, Forests and Climate change.
The Committee which has been constituted by the Tribunal is yet to submit its Report. The Tribunal has required the submission of the report by 31 March, 2019.
In this view of the matter, we deem it appropriate and proper to permit the appellant to place before the Tribunal, apart from the affidavit which has already been filed, further material on affidavit within a period of three weeks from today.
The Tribunal is requested to consider the submissions and to evaluate whether sufficient ground has been made out for not requiring the appellant to comply with the order of interim deposit.
In order to facilitate the above exercise, we direct that until the Tribunal takes a decision on the application that may be moved on behalf of the appellant, the interim direction for deposit shall not be enforce against the appellant and no coercive steps for non-compliance shall be taken.
We clarify that we have not expressed any opinion on the merits of the application or the action which the appellant proposes to take in the future. The appellant will be at liberty to move this Court again, including on the ground taken in the present appeal, if it is aggrieved by the order of the Tribunal."
6. The basic issue which has to be addressed by the Tribunal, on a case to case basis, is as to whether there has been a breach in complying with the obligations which 5 have been imposed by the Notifications of the MoEF&CC on 25 January 2016 and the earlier notification(s). This issue has not been addressed either in the earlier order dated 20 November 2018 or in the subsequent order dated 3 January 2019 of the Tribunal. The Tribunal will have to determine what is the nature of the obligation imposed and the steps required to be taken and in that context determine the nature of the breach.
7. Since a batch of other matters has been set down by this Court for consideration afresh by the Tribunal, we are of the view that the same course of action should be followed in the present appeal. We are not inclined to issue notice to Sandplast (India) Ltd., the first respondent, who is the original applicant before the National Green Tribunal having regard to the above directions and since there is no adversarial interest of the first respondent which is affected by the present directions. We keep all the rights and contentions of the parties open.
8. For the above reasons, we set aside the impugned order of the Tribunal dated 3 January 2019 and request the Tribunal to specifically consider the submissions which may be urged on behalf of the appellants in regard to the steps taken to comply with the Notification dated 25 January 2016 as also the earlier Notifications on the subject. 6 Following the order dated 25 January 2016 passed in Civil Appeal No.650 of 2019, we direct that until the Tribunal takes a decision on the application that may be moved on behalf of the appellants, the interim direction for deposit shall not be enforced against the appellants and no coercive steps for non-compliance shall be taken. We grant permission to the appellants to move an appropriate application before the Tribunal within a period of three weeks from today placing on affidavit the steps taken individually by the Thermal Power Plants represented by the appellants for effecting compliance with the Notifications.
9. The civil appeal and all pending applications stand disposed of accordingly. There shall be no order as to costs.
...........................J. [Dr. DHANANJAY Y. CHANDRACHUD] ...........................J. [HEMANT GUPTA] New Delhi;
4 February 2019.
7
ITEM NO.38 COURT NO.9 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL.......... Diary No(s).2959/2019 ASSOCICATION OF POWER PRODUCERS & ORS. Petitioner(s) VERSUS SANDPLAST (INDIA) LTD. & ORS. Respondent(s) (With appln.(s) for permission to file appeal, ex-parte stay and exemption from filing c/c of the impugned judgment) Date : 04-02-2019 This petition was called on for hearing today. CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE HEMANT GUPTA For Petitioner(s) Mr. A.M.Singhvi,Sr.Adv.
Mr. S. Venkatesh,Adv.
Mr. Vikas Mani,Adv.
Mr. Aseem Samuel,Adv.
Mr. Somesh Srivastava,Adv.
Mr. Samarth Kashyap,Adv.
Ms. Nishtha Kumar,AOR For Respondent(s) UPON hearing the counsel the Court made the following O R D E R Permission to file appeal is granted. The civil appeal is disposed of with no order as to costs in terms of the signed order.
(Saroj Kumari Gaur) (Sarita Purohit)
Branch Officer AR-cum-PS
(Signed order is placed on the file)